Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and Agee,
JJ., and Compton, S.J.
TRAVIS S. TUCKER
v. Record No. 040173 OPINION BY JUSTICE BARBARA MILANO KEENAN
November 5, 2004
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of Appeals
erred in holding that Rule 5A:18 precludes a criminal defendant
from raising for the first time on appeal the issue whether the
crime of unauthorized use of a motor vehicle includes a
requirement that a defendant obtain possession of the vehicle by
means of a trespassory taking.
Travis S. Tucker was indicted by a grand jury in the City
of Portsmouth for unauthorized use of a motor vehicle, in
violation of Code § 18.2-102. After a bench trial, the circuit
court convicted Tucker of the offense and sentenced him to two
years’ imprisonment, with a portion of that sentence suspended.
Tucker appealed his conviction to the Court of Appeals. He
argued that the evidence was insufficient to support the
conviction because the Commonwealth failed to prove that he
obtained the vehicle from its owner by means of a trespassory
taking. The Court of Appeals denied Tucker’s petition and held
that because Tucker had not raised this argument at trial, Rule
5A:18 barred consideration of the question on appeal. The Court
of Appeals also declined to consider Tucker’s argument under the
“good cause” and “ends of justice” exceptions to Rule 5A:18.
Tucker appeals.
We will state the evidence presented at trial in the light
most favorable to the Commonwealth, the prevailing party in the
circuit court. See Commonwealth v. Duncan, 267 Va. 377, 381,
593 S.E.2d 210, 212 (2004); Turner v. Commonwealth, 259 Va. 645,
648, 529 S.E.2d 787, 789 (2000). About 6:00 p.m. on June 18,
2002, Leonard J. Webster, Jr., lent his automobile to Tucker.
Webster had allowed Tucker to use the car on at least one prior
occasion.
On the evening in question, Webster agreed to let Tucker
and his girlfriend use Webster’s car to visit a restaurant and a
convenience store, after which they were to return the car to
Webster. A few hours after Webster allowed Tucker to take the
car, Webster saw the car, and Tucker, at the restaurant. Tucker
told Webster, “Go back to the house, and I’ll be there.”
Webster went to the house, but Tucker did not return with the
car.
During the following days, Webster saw Tucker driving the
car, and Tucker “sped off” from Webster when Webster tried to
approach the vehicle. Webster contacted the police, who
recovered the vehicle and returned it to him several days later
in damaged condition.
2
On appeal, Tucker concedes that he did not raise at trial
the issue he asks us to consider concerning the elements of the
crime of unauthorized use. However, he argues that the question
should be reviewed on appeal “in order to attain the ends of
justice” because his conduct did not fall within the scope of
conduct prohibited by Code § 18.2-102.
Tucker argues that an element of the crime of unauthorized
use is that the defendant take the vehicle without the owner’s
consent, and that the only difference between the crimes of
unauthorized use and larceny is the intent of the accused. He
asserts that because Webster voluntarily lent the vehicle to
him, he did not commit a trespassory taking because he did not
initially interfere with Webster’s right to possess the vehicle.
Instead, Tucker contends, a bailment was created between him and
Webster, and if Tucker committed any crime, it was the failure
to return bailed property.1 We disagree with Tucker’s arguments.
In order to determine whether Tucker’s appeal should have
been considered by the Court of Appeals for “good cause shown”
or to attain the “ends of justice,” we must resolve the
underlying statutory issue whether a trespassory taking of a
vehicle is an element of the crime of unauthorized use. Code
§ 18.2-102 provides, in relevant part:
1
See Code § 18.2-117.
3
Any person who shall take, drive away or use any . . .
vehicle . . . not his own, without the consent of the
owner thereof and in the absence of the owner, and
with intent temporarily to deprive the owner thereof
of his possession thereof, without intent to steal the
same, shall be guilty of a Class 6 felony[.]
Under basic rules of statutory construction, we determine
the General Assembly’s intent from the words contained in the
statute. Commonwealth v. Diaz, 266 Va. 260, 264, 585 S.E.2d
552, 554 (2003); Williams v. Commonwealth, 265 Va. 268, 271, 576
S.E.2d 468, 470 (2003). When the language of a statute is plain
and unambiguous, we are bound by the plain meaning of that
language and may not assign the words a construction that
amounts to holding that the General Assembly did not mean what
it actually stated. Diaz, 266 Va. at 265, 585 S.E.2d at 554;
Caprio v. Commonwealth, 254 Va. 507, 511-12, 493 S.E.2d 371, 374
(1997).
We conclude that the language of Code § 18.2-102 is
unambiguous and prohibits the use of a motor vehicle in the
owner’s absence without the owner’s consent and with the intent
to temporarily deprive the owner of his possession of the
vehicle. Because the statutory phrase “take, drive away or use”
is worded in the disjunctive, the offense is committed upon
“use” of the vehicle without the owner’s consent, whether or not
the criminal actor’s initial possession of the vehicle was
obtained by a trespassory taking.
4
Thus, under Code § 18.2-102, the initial possession of a
vehicle may be trespassory or consensual. When an owner
consents to another person having temporary possession of the
owner’s vehicle, but does not consent to its use beyond a
designated period of possession, the statute is violated when
such use continues without the owner’s consent and is
accompanied by an intent to temporarily deprive the owner of
possession of the vehicle. See Overstreet v. Commonwealth, 17
Va. App. 234, 238, 435 S.E.2d 906, 908-09 (1993).
Under the facts before us, Tucker initially obtained
consent from the vehicle’s owner to drive it to a restaurant and
a convenience store. When he did not return the car that night
but kept the vehicle for several days thereafter, Tucker plainly
violated Code § 18.2-102 by using the vehicle beyond the
designated period of consensual use with the intent to
temporarily deprive the owner of possession of the vehicle.
We disagree with Tucker’s claim that a different conclusion
is required by our decision in Hewitt v. Commonwealth, 213 Va.
605, 194 S.E.2d 893 (1973). There, the issue presented was
whether the crime of unauthorized use of a vehicle was a “lesser
included” offense of the crime of larceny. In holding that
unauthorized use was such a “lesser included” offense, we
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observed that the essential difference between the two crimes is
one of intent.2 Id. at 606, 194 S.E.2d at 894.
The fact that intent is a central element distinguishing
larceny from unauthorized use does not preclude the existence of
other differences in the elements of these crimes. Therefore,
while the common law crime of larceny requires that any taking
of property be trespassory at the outset, see Maye v.
Commonwealth, 213 Va. 48, 49, 189 S.E.2d 350, 351 (1972), the
statutory crime of unauthorized use does not impose a like
requirement.
We also find no merit in Tucker’s contention that he could
not be convicted of unauthorized use because the vehicle owner
did not specify the time or date when the owner’s consent would
terminate. Code § 18.2-102 contains no such requirement, and
the evidence plainly allowed the fact finder to conclude that
the owner’s permission to let Tucker use the car to go to a
restaurant and a store did not extend to a period of several
days afterward in which the car was removed from the owner’s
lawful possession.
For these reasons, we will affirm the Court of Appeals’
judgment.
2
Later in the opinion, we incorrectly stated that “intent
alone distinguishes larceny of a vehicle from unauthorized use.”
213 Va. at 607, 194 S.E.2d at 895. Because this statement was
6
Affirmed.
dictum in the context of our holding in Hewitt, we do not
address the statement further.
7